Martucci
lived with Brandi Holder (Holder) and her two-year old son (Child) in July
2002. Child died on Wednesday, July 17, 2002. Martucci and Holder were
indicted for homicide by child abuse under Section 16-3-85 of the South
Carolina Code. Martucci did not appear for trial and was tried in his absence
February 6-9, 2006. The jury convicted Martucci, and his sentence was sealed.
On March 6, 2006, Martucci appeared in court and was sentenced to life in
prison.

A
priori, the Court embarks on a
juridical journey encapsulating a temporal and spatial analysis of the
evidentiary record. Nurse Ladye Kelly testified that Martucci and John Parker
(Parker) brought Child to the emergency room of Allen-Bennett Hospital. Kelly declared Child appeared lifeless. He “had multiple bruises over most of his
body.” She described “a very odd pattern” of marks on his face which appeared
to be knuckle prints. She stated Child “had multiple bruises on his legs, on
his arms. His eyes were blackened. He also had a place around his mouth that
was scratches or abrasions . . . and had a lot of bruising.” Child had “a
purple black mark that . . . covered most of his back.” Kelly substantiated
the bruises “were all in different stages of healing. Some of them were very
fresh looking dark-purplish blue colors. Others were yellow, barely noticeable
that had healed and were in between those two things. Some were darker than
others. Some were lighter than others.” She recalled that Child’s abdomen was
“very swollen.” He was “very pale. He was blue around the mouth,” which
showed he had not been breathing.

Kelly
assisted emergency room doctor Kevin Gregg in trying to revive Child, but they
were unsuccessful. Dr. Gregg asserted the Child was “freshly dead. He was
cooler—his temperature was cooler than 98.6, but it was warmer than room
temperature.” Dr. Gregg recollected that Martucci and Parker told him about a
“four-wheeler ATV accident” earlier in the week. Dr. Gregg declared they told
him that Child was not wearing a helmet on an ATV and “flipped or was ejected
out of the ATV, so the story went. The story was that he looked okay after the
injury so the family didn’t feel a need to bring him to the ER to get
checked.” Holder and Martucci advised Dr. Gregg that Child appeared weak and
had vomited several times the day before. Dr. Gregg professed Martucci claimed
that he performed mouth-to-mouth resuscitation, and Child “bit him on the upper
lip.” Dr. Gregg annunciated this story was implausible because “that is
something I’ve never seen before. I’ve never head of it before. When you do
rescue breathing on somebody, they are unconscious. And an unconscious person
can’t bite. . . . I don’t understand why an unconscious boy would bite somebody
on the lip. . . . If he’s conscious, he doesn’t need mouth to mouth
resuscitation.” Dr. Gregg recalled that Martucci had an open cut on his lip,
but he did not treat Martucci’s injury.

Dr.
Gregg opined Child’s injuries were inconsistent with the kind of accident
described. He explained Child “had bruises. He didn’t have cuts. He didn’t
have abrasions. He didn’t have the usual signs of wear and tear you see on a
two-and-a-half-year-old boy. He didn’t have skinned knees. He didn’t have
scraped up palms from playing or rolling or falling off the porch. He had
bruises.”

John
Parker (Parker) asseverated that he visited Martucci and Holder’s home “[f]rom
time to time.” He saw Martucci interact with Child. He testified without
objection:

Parker: There
was an incident where we were in his living room and [Child] was crying. And
Mr. Martucci had told him on numerous occasions to . . . He was asked—Mr.
Martucci asked him—or told him on numerous occasions to stop crying. And
[Child] did not do so. He then proceeded to tape his mouth shut with tape.

. . .

There
were episodes where he would be in the bathroom and Mr. Martucci would be
giving him a bath. I would hear [Child] crying. And I would walk in to see
what he was crying about and Mark would be pouring water over his head. And
[Child] would continue to keep crying. He would tell him that crying is for
pussys. And he would dunk his head under water. He did that on numerous
occasions.

Assistant
Solicitor: When you say “dunk his head under water,” was it a quick dunk?

Parker: No,
ma’am. I’d say, at least, a couple of seconds at a time.

Assistant
Solicitor: How was [Child] reacting to that?

Parker: He
would swallow water almost like he was choking on the water. And then he would
pull him up. And then no sooner—he would barely even catch his breath and he
would do it again.

. . .

Assistant
Solicitor: Did you witness anything else abusive?

Parker: We
were in the van—no, I take that back. We were outside sometimes and then there
was a couple of occasions in the inside of his house where he would be crying
and Mr. Martucci would slap him in the face on both sides of his face.

Assistant
Solicitor: Can you sort of demonstrate in some way what you’re talking about?
What kind of slap or force was used?

Parker: The
only way I can describe it is the way a person would smack a dog to make them
mean, back and forth.

Assistant
Solicitor: That’s what he did to [Child’s] head?

Parker: Yes,
ma’am. I’ve seen him grab his face like that when he wouldn’t stop crying and
try to tell him to be quiet.

Assistant
Solicitor: Did you ever see bruises or marks on [Child]?

Parker: I
did notice the bruises on his face from the way he was grabbing him. And I
believe I did notice the bite on his wrist. They—it did seem that they went
out of their way to make sure he kept clothes on. I very rarely seen him
without clothes, except for the incidents in the bathroom.

Dr.
Michael Eugene Ward, Greenville County’s chief medical examiner, was called to
the hospital soon after Child was pronounced dead. He declared:

On
initial examination at Allen Bennett Hospital, there were numerous bruises to
[Child] about the face, the chest, the back, and the extremities. There were
injuries that were present around the perineum or the penis, and to one of the
arms that were especially disconcerting to us. And so we took samples of them
at that time.

Dr.
Ward performed an autopsy on Child. Photographs of Child and his internal
organs were admitted into evidence over Martucci’s objection. Dr. Ward used
the photographs to explain Child’s injuries:

This is
a photograph of the left back leg of [Child]. This is right in the crux of the
leg. And, as you can see, there are these bruises and superficial abrasions of
the skin running in a linear fashion across the skin. These indicating that
this is a result of blunt injury.

So it’s
not a sharp injury that you would expect from a knife or from some sort of
cutting instrument. And it’s not from a penetrating injury like a gunshot
wound, but it’s a blunt injury where the skin is compressed and there’s
disruption of underlying blood vessels resulting in a bruise, as well as a
superficial abrasion or a scratching of the skin.

So this
is linear injuries or line-shaped contusions to the back of [Child’s] leg.

Assistant
Solicitor: Dr. Ward, in your experience and training, are there any particular
mechanisms of inflicting such a linear bruise?

Dr.
Ward: There are. There are numerous instruments that can be used that will cause
a linear-type bruise. Generally, they are things that are longer than they are
wide. Certain things can be—they can be cords. They can be belts or even
fingers if a slap is applied in a hard enough fashion that create these linear
and sort of semi-circular type bruises as with this.

. . .

This is
a photograph of the perineal region of the body of [Child]. This is the
abdomen here, the pelvis, the penis, and the scrotum. Here at the base of the
penis is a bruise, a sort of butterfly-shaped, if you will, bruise
approximately one and a half inch in greatest dimension. There’s a smaller
bruise in this region here.

And
right here at the base of the penis where the skin of the penis attaches to the
pelvic skin, there’s a superficial laceration or tear of the skin in this
region. I took microscopic sections—at the time of autopsy, I took microscopic
sections of the skin through this region here. It demonstrated acute
hemorrhage or bleeding into the skin. But it indicated that there was no
evidence of any healing. There was no inflammation. There was no granulation
tissue. There was no evidence of repair to this region here or here.

Assistant
Solicitor: And what did that indicate to you?

Dr.
Ward: That is was a recent injury only a—no more than a few hours old. And as
we will see with other injuries that there were, there was—which have evidence
of healing that this act most very likely occurred at a different time than the
other injuries—some other injuries. This is the result of blunt trauma. I
believe that this is a blunt injury to this region here with superficial
tearing of adjacent skin.

. . .

This is
a photograph taken at the time of autopsy showing the intraabdominal cavity of
[Child]. There were bruises on the outer surface of the skin. As we dissected
beneath, there was—there were bruising beneath the skin and above the muscles
of the abdomen.

When we
reflected those muscles of the abdomen, we were able to demonstrate that there
was over 250 milliliters of blood present in the peritoneal cavity or in the
abdominal cavity. 350 milliliters is about the size of a can of Coke. So this
is almost the amount of blood that’s in a can of Coke or a little bit less than
that.

This is
the small intestine here. And this is the large intestine. As you can see,
there’s a space between here that should not normally be. There’s a fatty
ligament that normally attaches this large intestine to the underlying
structures of the abdomen. This has been torn. It’s been torn away from the
underlying surface of the large intestine. And in this region here, there is
blood that is hemorrhaged within the outer surface of the large intestine, as
well as—

. . .

State’s
Exhibit No. 13, again, demonstrates the tearing of the ligament that normally
attaches the large intestine to the stomach demonstrating that it has been torn
away along this broad surface of the transverse colon, hemorrhage within the
outer surface of the colon, as well as hemorrhage deep down in the structures
of the abdomen. Within this region here, it’s the head of the pancreas. There
have been trauma and hemorrhage to the head of the pancreas with the soft
tissue surrounding the pancreas with hemorrhage.

And the
interesting thing about this injury is that when I took microscopic sections
from this region, it did show evidence of healing, that there were
evidence—there were areas that showed not only acute hemorrhage, but there were
other areas that showed hemorrhage that had been there for a period of time,
several hours to a couple of days such that the body had started to react to
this injury. It had started to try to repair it. And there was—there were
fibrous tissues being laid down. There were new blood vessels there. There
were cells that come in and try to clean up this blood.

So we
have two different ages of trauma here in the abdomen. We’ve got some that
shows evidence of healing, and some that show no evidence of healing and only
fresh blood.

. . .

The
blunt injuries to [Child’s] gastrointestinal system would, basically, cause his
small and large intestine to no longer function in the way that we know it to
do. The small intestine, basically, takes food, water, and other products from
the stomach and allows it to pass and begin to digest on its way down to the
large intestine. When you traumatize the small intestine, as [Child] had with
tearing of the mucosa, then the muscles—the smooth muscles in the small
intestine are no longer going to work together to move things down the system.
So they’re going to back up.

And the
most common presentation of someone with trauma to the small intestine like
that and no longer moving fluids out would be vomiting, in that anything that
goes in is going to sit on the stomach and not be able to be passed down. The
pressure is going to be increased. And then the person would have nausea and
vomiting. Certainly, I would expect it to be, obviously fairly painful in that
he may even show some guarding and not want you to touch his stomach.

Elizabeth
Venesky (Venesky) lived next door to Martucci and Holder. Her husband took two
pictures of her and Child while he visited their house on June 20, 2002. In
the pictures, Child was not wearing a shirt. Dr. Ward discussed:

These
bruises here [in Venesky’s pictures] are not—although they’re in the same
location, they’re not the same bruises that we saw at the time of autopsy. So
he has bruises here at this time. He has separate and distinct bruises in
virtually the same place at the time of autopsy.

ISSUES

I.

Did trial judge err in admitting
autopsy photographs of Child’s internal organs and other injuries?

II.

Did the trial judge err in admitting
evidence of prior incidents of alleged abuse of Child by Martucci in the weeks
immediately preceding his death?

III.

Did the trial judge err in
admitting evidence of Martucci’s character, specifically Parker’s testimony
that Martucci had a temper and had pistols in the house?

The
State has the right to prove every element of the crime charged and is not
obligated to rely upon a defendant’s stipulation. State v. Johnson, 338
S.C. 114, 122, 525 S.E.2d 519, 523 (2000). The relevance, materiality, and
admissibility of photographs are matters within the sound discretion of the
trial court and a ruling will be disturbed only upon a showing of an abuse of
discretion. State v. Haselden, 353 S.C. 190, 199, 577 S.E.2d 445, 450
(2003); State v. Rosemond, 335 S.C. 593, 596, 518 S.E.2d 588, 589-90
(1999); see alsoState v. Kelley, 319 S.C. 173, 177, 460 S.E.2d
368, 370 (1995) (stating that trial judge has considerable latitude in ruling
on admissibility of evidence and his rulings will not be disturbed absent
showing of probable prejudice). The trial judge must balance the prejudicial
effect of graphic photographs against their probative value. State v. Vang,
353 S.C. 78, 87, 577 S.E.2d 225, 229 (Ct. App. 2003). A trial judge’s decision
regarding the comparative probative value and prejudicial effect of relevant
evidence should be reversed only in exceptional circumstances. State v. Hamilton, 344 S.C. at 357, 543 S.E.2d at 593. Admitting photographs which serve to
corroborate testimony is not an abuse of discretion. Rosemond, 335 S.C.
at 597, 518 S.E.2d at 590; seeState v. Tucker, 324 S.C. 155, 478
S.E.2d 260 (1996); State v. Jarrell, 350 S.C. 90, 564 S.E.2d 362 (Ct. App. 2002). However, photographs calculated to arouse the sympathy or prejudice of the
jury should be excluded if they are irrelevant or not necessary to substantiate
material facts or conditions. State v. Brazell, 325 S.C. 65, 78, 480
S.E.2d 64, 72 (1997). “To constitute unfair prejudice, the photographs must
create a ‘tendency to suggest a decision on an improper basis, commonly, though
not necessarily, an emotional one.’” Kelley, 319 S.C. at 178, 460
S.E.2d at 370-71 (quoting State v. Alexander, 303 S.C. 377, 382, 401
S.E.2d 146, 149 (1991)). A trial judge is not required to exclude relevant
evidence merely because it is unpleasant or offensive. Davis v.
Traylor, 340 S.C. 150, 530 S.E.2d 385, 387 (Ct. App. 2000).

In
the present case, the photographs were introduced to corroborate the testimony
of Dr. Ward, who testified regarding the various injuries inflicted on Child,
including the discoloration of the bruises and the internal trauma which caused
his death. The photographs were relevant to prove Child was abused, that the
abuse was the cause of his death, and that the abuse manifested an extreme
indifference to human life, all of which support the charge of homicide by
child abuse. See S.C. Code Ann § 16-3-85(A)(1) (2003). Furthermore,
the photographs were necessary to depict the severity of the bruises and the
resulting trauma, which was inconsistent with accidental injury or play. The
photographs were relevant and necessary, and they were not introduced with the
intent to inflame, elicit the sympathy of, or prejudice the jury. The trial
judge did not abuse his discretion in admitting the photographs. SeeJarrell,
350 S.C. at 106, 564 S.E.2d at 371 (upholding the admission of graphic autopsy
photographs in homicide by child abuse case because they corroborated testimony
and demonstrated the extent of the injuries); see alsoState v.
Nichols, 325 S.C. 111, 121, 481 S.E.2d 118, 124 (1997) (admitting a
photograph of the victim’s face because it demonstrated the angle and distance
from which the victim was shot); State v. Nance, 320 S.C. 501, 508 466
S.E.2d 349, 353 (1996) (holding trial court did not err in admitting
photographs during trial which (1) corroborated testimony regarding the various
places in which the victim was stabbed; (2) corroborated testimony indicating
the likelihood the victim died of the stab wounds; (3) were used to show
malice, an element of the crime charged; and (4) were later reviewed by the
supreme court and found not to be unduly prejudicial to the defendant).

The
trial judge has considerable latitude in ruling on the admissibility of
evidence and his decision should not be disturbed absent prejudicial abuse of
discretion. Brazell, 325 S.C. at 78, 480 S.E.2d at 72. Evidence is
relevant if it has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.” Rule 401, SCRE. “All relevant
evidence is admissible, except as otherwise provided by the Constitution of the
United States, the Constitution of the State of South Carolina, statutes, these
rules, or by other rules promulgated by the Supreme Court of South Carolina.”
Rule 402, SCRE. Relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. Rule 403, SCRE; State
v. Aleksey, 343 S.C. 20, 35, 538 S.E.2d 248, 256 (2000). The determination
of prejudice must be based on the entire record, and the result will generally
turn on the facts of each case. State v. Brooks, 341 S.C. 57, 62, 533
S.E.2d 325, 328 (2000). Evidence is unfairly prejudicial if it has an undue
tendency to suggest decision on an improper basis, such as an emotional one. Saltz,
346 S.C. at 127, 551 S.E.2d at 247.

South
Carolina law precludes evidence of a defendant’s prior crimes or other bad acts
to prove the defendant’s guilt for the crime charged, except to establish: (1)
motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme
or plan embracing the commission of two or more crimes so related to each other
that proof of one tends to establish the other, or (5) the identity of the
perpetrator. State v. King, 334 S.C. 504, 514 S.E.2d 578 (1999); State
v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923); State v. Sweat, 362 S.C.
117, 123, 606 S.E.2d 508, 511 (Ct. App. 2004). If not the subject of a
conviction, proof of prior bad acts must be clear and convincing. State v.
Weaverling, 337 S.C. 460, 468, 523 S.E.2d 787, 791 (Ct. App. 1999). When
considering whether there is clear and convincing evidence, this court is bound
by the trial judge’s findings unless they are clearly erroneous. State v.
Tutton, 354 S.C. 319, 325, 580 S.E.2d 186, 189 (Ct. App. 2003). The record
must support a logical relevance between the prior bad act and the crime for
which the defendant is accused. Id. at 329, 580 S.E.2d at 192. Even
though the evidence is clear and convincing, and falls within a Lyle exception, it must be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice to the defendant. Id. at 324, 580 S.E.2d at 189. If there is any evidence to support the admission of
bad act evidence, the trial judge’s ruling cannot be disturbed on appeal. Wilson, 345 S.C. at 6, 545 S.E.2d at 829.

a.
Intent/Absence of Mistake or Accident

In a
prosecution for homicide by child abuse, “extreme indifference” is in the
nature of “a culpable mental state . . . and therefore is akin to intent.” Jarrell,
350 S.C. at 98, 564 S.E.2d at 366; see alsoState v. McKnight,
352 S.C. 635, 644, 576 S.E.2d 168, 172-73 (2003).

The
prior abuse or neglect at issue was admissible as proof of intent and the
absence of accident. The State contended Martucci killed Child while
committing child abuse or neglect under circumstances manifesting an extreme
indifference to human life. The prior abuse or neglect at issue in the weeks
before the infliction of the fatal injuries was relevant to the material issue
of Martucci’s state of mind. Martucci’s hostility, cruelty, and abuse toward
Child could be established by evidence that, during the weeks before he died,
Martucci abused Child by slapping his face, taping his mouth shut, and dunking
his head in the bathtub until he choked to stop him from crying. The presence
of bite marks and bruises, and the fact that Martucci kept Child’s skin covered
and rarely let him out of the house in the apparent attempt to conceal the
abuse, is further evidence of Martucci’s state of mind to inflict the fatal
injuries. Because Martucci disputed the motive and intent to commit homicide by
child abuse, evidence of the prior abuse or neglect was highly probative of his
guilt on the homicide charge. The evidence was necessary to establish a
material fact or element of the crime charged. SeeState v. Smith,
337 S.C. 27, 522 S.E.2d 598 (1999) (defendant’s prior criminal domestic
violence conviction admissible to establish his intent to kill and the absence
of mistake or accident); State v. Sweat, 362 S.C. 117, 606 S.E.2d 508 (Ct. App. 2004) (evidence of a prior episode of domestic violence was admissible in
prosecution for first-degree burglary, assault and battery with intent to kill,
and assault of a high and aggravated nature; to show defendant’s motive, that
defendant was driven by anger over ex-girlfriend causing him to go to jail and
terminating their relationship, and that he intended to “get his property”; and
intent, that defendant maliciously sought to inflict harm upon ex-girlfriend
and her new boyfriend).

Child abuse differs from other types of crimes in several respects.
Specifically, the crime of child abuse often occurs in secret, typically in the
privacy of one’s home. The abusive conduct is not usually confined to a single
instance, but rather is a systematic pattern of violence progressively
escalating and worsening over time. Child victims are often completely
dependent upon the abuser, unable to defend themselves, and often too young to
alert anyone to their horrendous plight or ask for help. It is also not
uncommon for child abuse victims to be so young that they are incapable of
offering testimony against the abuser. For these reasons, proving the crime of
child abuse is extremely difficult.

When
a child is brought to an emergency room with injuries in various stages of
healing, there is evidence of recurring child abuse. If the multiple, separately
occurring injuries are not admissible in child abuse prosecutions, the crime
would be virtually impossible to prove. Martucci and Holder both informed
hospital personnel and police that Child was injured in a four-wheeler accident
and that he frequently fell. The prior abuse or neglect at issue was so close
in time to the infliction of the fatal injuries that the evidence was relevant
and probative to refute their claims and demonstrate Martucci intended to hurt
Child. The prior evidence was logically relevant to Martucci’s intent and
absence of mistake or accident at the time of Child’s death.

b.
Identity

Martucci
advances he did not abuse Child; instead, he said “she” did it. On the other
hand, Holder eventually told police that “he” abused Child and admitted she did
nothing to stop it. In order to identify Martucci as the likely perpetrator of
Child’s injuries, the prior abuse or neglect at issue was relevant to establish
his identity as the person or one of the persons who fatally abused Child. SeeState v. Forney, 321 S.C. 353, 468 S.E.2d 641 (1996) (finding evidence that
defendant was the gunman during a robbery was relevant to establish it was the
defendant who actually killed the victim); State v. Good, 315 S.C. 135,
432 S.E.2d 463 (1993) (evidence that defendant robbed grandmother’s home four
months earlier and the theft of items belonging to her were admissible to
establish identity of her killer). The fact that Martucci exhibited such
cruelty and abuse toward Child within a relatively short period of time prior
to his death circumstantially identified him as Child’s killer. SeeState v. Gillian, 373 S.C. 601, 609, 646 S.E.2d 872, 876 (2007).

c.
Common Scheme or Plan

The
evidence at issue established a pattern of continuous abuse or neglect
necessary to prove homicide by child abuse and clearly supported the existence
of a common scheme or plan, which made it more probable Child was a victim of
“child abuse or neglect.” The prior abuse or neglect at issue is highly
relevant to Martucci’s common scheme or plan rather than his character. The
evidence showed Martucci followed a pattern of continuous conduct over a period
of time from June to Child’s death on July 17, making its logical relevance
apparent and the evidence admissible. SeeTutton, 354 S.C. at 329,
580 S.E.2d at 192.

In
the case of the common scheme or plan exception, a close degree of similarity between
the prior bad act and the crime for which the defendant is on trial is
necessary. State v. Hough, 325 S.C. 88, 95, 480 S.E.2d 77, 80 (1997).
Prior bad act evidence is admissible where the evidence is of such a close
similarity to the charged offense that the previous act enhances the probative
value of the evidence so as to outweigh the prejudicial effect. State v.
Raffaldt, 318 S.C. 110, 114, 456 S.E.2d 390, 392 (1995). The degree of remoteness
between the other crimes and the one charged is one factor to be considered in
determining the connection between them. Id. As the similarity becomes
closer, the more likely the evidence will be admissible. State v. Aiken,
322 S.C. 177, 180, 470 S.E.2d 404, 406 (Ct. App. 1996). “The acid test of
admissibility is the logical relevancy of the other crimes.” State v. Cutro,
332 S.C. 100, 103, 504 S.E.2d 324, 325 (1998).

When
a criminal defendant’s prior bad acts are directed toward the same victim and
are very similar in nature, those acts are admissible as a common scheme or
plan. State v. Weaverling, 337 S.C. at 471, 523 S.E.2d at 792-93. In Weaverling,
the defendant repeatedly raped the same child. Id. This Court held the
defendant’s prior acts were admissible even though the acts were not charged. Id. at 469, 523 S.E.2d at 791. This Court articulated that “[w]here the evidence is
of such a close similarity to the charged offense that the previous act
enhances the probative value of the evidence so as to overrule the prejudicial
effect, it is admissible.” Id. (citing Raffaldt, 318 S.C. 110,
456 S.E.2d 390).

The
present case is distinguishable from State v. Pierce, 326 S.C. 176, 485
S.E.2d 913 (1997). In Pierce, testimony of the defendant’s fellow
employee about the defendant’s rough treatment of the child one year prior to
his death was held to be inadmissible under the common scheme or plan exception
because there was no connection between the prior bad act and the crime of
homicide by child abuse. However, as with cases of sexual abuse, child abuse
generally involves the same perpetrator committing abuse against the same
helpless victim. And where, as here, the perpetrator is the parent or a person
with exclusive custody and control over the victim, proving the abuse becomes
extremely difficult.

As a
result of the difficulties in proving child abuse, “evidence which shows a
pattern of abuse becomes even more probative than it might otherwise be.” Pierce,
326 S.C at 182, 485 S.E.2d at 916 (citing State v. McClellan, 283 S.C.
389, 323 S.E.2d 772 (1984)) (Burnett, J., dissenting). Justice Burnett further
elaborated: “[c]ontinued illicit intercourse is analogous to a pattern of child
abuse, and the only difference between [child abuse] and McClellan is
that this case involved child abuse, not sex abuse.” Id.

Pierce can be reconciled with this case. In Pierce,
the prior abuse occurred one year before the child’s death. The prior abuse or
neglect at issue in the case sub judice occurred about a month and a
half up to a few weeks before Child’s death. The evidence of prior abuse
against the same victim was not remotely disconnected in time from the conduct
giving rise to the homicide by child abuse and was part of the same pattern of
abuse showing extreme indifference to human life. It was logically relevant to
proving Child died of multiple, non-accidental blunt force injuries and that
his death was the result of child abuse. There should be no distinction
between continued illicit intercourse by the same perpetrator against the same
victim and continued child abuse by the same perpetrator against the same
victim. The State had the burden of proving that Martucci’s conduct caused Child’s
death. Because the prior abuse or neglect was probative of a pattern of abuse
by Martucci against Child, it was admissible under the “common scheme or plan”
exception to Lyle.

d. Clear and Convincing
Evidence

Martucci
did not argue at trial that the State failed to show the prior acts by clear
and convincing evidence. The issue cannot be considered on appeal. SeeState v. Luckabaugh, 327 S.C. 495, 499, 489 S.E.2d 657, 659 (Ct. App. 1997)
(issue not preserved when a defendant failed to object to testimony as less
than clear and convincing); see alsoNichols, 325 S.C. 111, 481
S.E.2d 118 (an objection must be on a specific ground); State v. Patterson,
324 S.C. 5, 19, 482 S.E.2d 760, 767 (1997) (an appellant “is limited to the grounds
raised at trial”).

In
any event, the photographs of Child taken by Venesky’s husband were
admissible. The appellate court “does not conduct a de novo review to
determine if the evidence is clear and convincing.” State v. Cheeseboro,
346 S.C. 526, 546, 552 S.E.2d 300, 310 (2001) (noting that court cannot
re-revaluate the facts based on its own view of the preponderance of the
evidence but must simply determine whether the trial judge’s ruling is
supported by any evidence). Here, Parker testified about his direct
observations of the prior incidents. Further, other witnesses testified about
the bruises and burns depicted in the photographs. Thus, there was clear and
convincing evidence of the prior abuse to admit it at trial. The credibility of
this evidence was for the jury, not this Court, to determine. Id.

e. Res Gestae

Evidence
of bad acts or other crimes may be admitted under the res gestae theory:

One of
the accepted bases for the admissibility of evidence of other crimes arises
when such evidence “furnishes part of the context of the crime” or is necessary
to a “full presentation” of the case, or is so intimately connected with and
explanatory of the crime charged against the defendant and is so much a part of
the setting of the case and its “environment” that its proof is appropriate in
order “to complete the story of the crime on trial by proving its immediate
context or the ‘res gestae’” or the “uncharged offense is ‘so linked
together in point of time and circumstances with the crime charged that one
cannot be fully shown without proving the other . . .’ [and is thus] part of
the res gestae of the crime charged.” And where evidence is admissible
to provide this “full presentation” of the offense, “[t]here is no reason to
fragmentize the event under inquiry” by suppressing parts of the “res gestae.”

State v. Adams, 322 S.C. 114, 122, 470 S.E.2d 366, 370-71 (1996)
(quoting United States v. Masters, 622 F.2d 83, 86 (4th Cir. 1980)). The res gestae theory recognizes that evidence of other bad acts may be an
integral part of the crime with which the defendant is charged or may be needed
to aid the fact finder in understanding the context in which the crime
occurred. State v. Owens, 346 S.C. 637, 552 S.E.2d 745 (2001), overruled
on other grounds byState v. Gentry, 363 S.C. 93, 610 S.E.2d 494
(2005); Wood, 362 S.C. 520, 608 S.E.2d 435; State v. Adams, 354
S.C. 361, 580 S.E.2d 785 (Ct. App. 2003). Under this theory, it is important
that the temporal proximity of the prior bad act be closely related to the
charged crime. Hough, 325 S.C. 88, 480 S.E.2d 77. Even if the evidence
is relevant under this theory, prior to admission the trial judge should
determine whether its probative value clearly outweighs any unfair prejudice.
Rule 403, SCRE; State v. Bolden, 303 S.C. 41, 398 S.E.2d 494 (1990).

Martucci
argues the prior incidents were neither factually nor temporally related to the
charged crime. In this case, the time period and similarity of the incidents
involved must be examined overall because of the nature of the crime charged.
The overall view of the facts provides the context in which the crime occurred
and demonstrates the culminating impact on Child. The incidents were relevant
to establishing Martucci’s state of mind and whether or not he manifested an
extreme indifference to human life. The alleged child abuse occurred in the
month and a half to several weeks before the fatal trauma was inflicted. The
evidence was necessary to establish the crime charged. Its admission was essential
and relevant to a full presentation of the evidence in this case. The
testimony regarding the prior bad acts was relevant to show the complete, whole
story relating to the charge of homicide by child abuse. Moreover, the
probative value of the evidence outweighed its prejudicial effect. SeeOwens,
346 S.C. at 653, 552 S.E.2d at 753. The trial judge did not err in admitting
the evidence of alleged prior abuse pursuant to the res gestae doctrine.

III. Parker’s
testimony of Martucci’s character

Martucci
argues the trial judge committed reversible error in allowing Parker’s
testimony about his temper and that he had pistols in the house. He contends
this evidence improperly introduced his bad character to the jury and was
inadmissible under State v. Lyle, 125 S.C. 406, 118 S.E. 803 (1923). We
disagree.

Parker
witnessed several occasions when Martucci abused Child while he stayed at the
house. Parker testified that when Martucci abused Child, “it would upset me to
the point to where I would have to walk outside. I couldn’t listen to it
anymore.” On direct examination, the Assistant Solicitor asked Parker:

Assistant
Solicitor: Did you ever think about trying to call for help for [Child]?

Parker: I
thought about it, yes, ma’am. Me and Mr. Martucci had—we had had conflicts in
the past. And I knew of his temper from hanging out with him a lot—

Defense
Counsel: Your Honor, I would object to any character evidence of Mr. Martucci.

The
Court: I’ll allow this. Go ahead.

Parker: We
had—I knew of his attitude. I knew he had pistols in the house. I knew that
he—we had had conflicts in the past to the point—we had—there was one episode
in Myrtle Beach to where me and a few friends of mine were down there as well
as—

Defense
Counsel: Your Honor, I hate to object—

The
Court: Yes. This is getting a little bit too far now, Solicitor.

Assistant
Solicitor: Your Honor, I will say that this is relevant to his state of mind
and—

Parker’s
direct examination continued. Parker averred he was afraid of Martucci because
of prior incidents. Parker noted he was “pretty small” in comparison to
Martucci. Parker said he did not get help because, “I was afraid of him and I
knew the—what could happen scared me.”

Where
a defendant objects and the objection is sustained but he does not move to
strike the evidence, the issue is not preserved for appellate review. State
v. McFadden, 318 S.C. 404, 410, 458 S.E.2d 61, 65 (Ct. App. 1995) (no issue
is preserved for appeal where the court sustains a party’s objection to
improper testimony and the party does not move to strike the testimony); State
v. Wingo, 304 S.C. 173, 177-78, 403 S.E.2d 322, 325 (Ct. App. 1991) (a
motion to strike is necessary where a question is answered before an objection
has been interposed, even though the objection is sustained); see alsoState
v. Kelsey, 331 S.C. 50, 75, 502 S.E.2d 63, 73, 76 (1998) (any prejudice to
the defendant could have been removed if the defendant had requested the trial
judge to strike the objected-to testimony and to give a curative instruction to
the jury).

In
the case at bar, Martucci objected to Parker’s testimony about the presence of
guns in the house and a prior incident in Myrtle Beach. The trial judge
sustained the objection by stating, “it’s gone far enough.” He then instructed
the Assistant Solicitor to “move on.” Martucci failed to request the trial
judge either strike the objectionable testimony or to instruct the jury to
disregard the reference, and he did not move for a mistrial. His failure to
request appropriate relief precludes appellate review of this issue. Id.

When
Parker later testified about his fear of Martucci based on prior incidents and
because he knew “what could happen to me,” there was no objection. Because the
jury heard this other evidence, the fact they heard the previous testimony was
not prejudicial to Martucci. SeeHaselden, 353 S.C. at 196, 577
S.E.2d at 448 (stating the erroneous admission of prior bad act evidence is
harmless beyond a reasonable doubt if its impact is minimal in the context of
the entire record); State v. Schumpert, 312 S.C. 502, 507, 435 S.E.2d
859, 862 (1993) (finding any error in the admission of evidence cumulative to
other unobjected-to evidence is harmless).

Parker’s
testimony was an isolated comment regarding Martucci’s temper and his
possession of pistols that did not prejudice Martucci. The State did not
attempt to introduce evidence of any prior convictions or otherwise highlight
his character in this regard. SeeState v. Council, 335 S.C. 1,
515 S.E.2d 508 (1999) (determining law enforcement agent’s isolated testimony
that he compared defendant’s fingerprints with a fingerprint card agency had on
record was not so prejudicial to defendant as to warrant a mistrial because it
was questionable whether jury drew connection between fingerprint card and
defendant’s prior criminal activity); State v. George, 323 S.C. 496, 476
S.E.2d 903 (1996) (recognizing appellant’s possible drug dealing was merely
suggested and no testimony was presented concerning such behavior); State v.
Robinson, 238 S.C. 140, 119 S.E.2d 671 (1961), overruled on other
grounds byState v. Torrence, 305 S.C. 45, 406 S.E.2d 315 (1991)
(holding that, even if the testimony created the inference in the jury’s mind
that the accused had committed another crime, the State never attempted to
prove the accused had been convicted of some other crime); State v. Creech,
314 S.C. 76, 81-82, 441 S.E.2d 635, 638 (Ct. App. 1993) (holding trial judge
did not abuse his discretion in denying defendant’s motion for a mistrial when
officer testified that he obtained warrants for defendant’s arrest and
contacted “the Probation Officer”). Accordingly, Martucci is not entitled to a
new trial.

IV. Harmless Error

Assuming, arguendo, that the trial judge did err in admitting Parker’s testimony,
such error was harmless. Whether an error is harmless depends on the
circumstances of the particular case. In re Harvey, 355 S.C. 53, 63,
584 S.E.2d 893, 897 (2003); Taylor, 333 S.C. at 172, 508 S.E.2d at 876; State
v. Thompson, 352 S.C. 552, 562, 575 S.E.2d 77, 83 (Ct. App. 2003). “No
definite rule of law governs this finding; rather, the materiality and
prejudicial character of the error must be determined from its relationship to
the entire case.” Mitchell, 286 S.C. at 573, 336 S.E.2d at 151.

Error
is harmless where it could not reasonably have affected the result of the
trial. In re Harvey, 355 S.C. at 63, 584 S.E.2d at 897; Mitchell,
286 S.C. at 573, 336 S.E.2d at 151; State v. Burton, 326 S.C. 605, 610,
486 S.E.2d 762, 764 (Ct. App. 1997). Generally, appellate courts will not set
aside convictions due to insubstantial errors not affecting the result. Sherard,
303 S.C. at 176, 399 S.E.2d at 597; Adams, 354 S.C. at 380-81, 580
S.E.2d at 795. Thus, an insubstantial error not affecting the result of the
trial is harmless when guilt has been conclusively proven by competent evidence
such that no other rational conclusion can be reached. State v. Bailey,
298 S.C. 1, 5, 377 S.E.2d 581, 584 (1989). The admission of improper evidence
is harmless where the evidence is merely cumulative to other evidence. State
v. Blackburn, 271 S.C. 324, 329, 247 S.E.2d 334, 337 (1978); Weaverling,
337 S.C. at 471, 523 S.E.2d at 793; see alsoState v. Williams,
321 S.C. 455, 463, 469 S.E.2d 49, 54 (1996) (instructing that error in
admission of evidence is harmless where it is cumulative to other evidence
which is properly admitted).

There
was overwhelming and independent evidence of Martucci’s guilt. Parker
testified about Martucci’s prior abuse of Child and that Martucci was the last
person with Child before he died. Martucci lied to the police and hospital
personnel about the cause of Child’s injuries. Holder told the police about
Martucci’s physical abuse of Child just before his death. This evidence,
together with other physical evidence in this case, clearly demonstrates
Martucci’s guilt of homicide by child abuse was conclusively proven by
competent evidence such that no other rational conclusion could be reached.
Given this substantial and overwhelming evidence of Martucci’s guilt, the
challenged evidence was cumulative and its admission is not a ground for
reversal. Baccus, 367 S.C. at 55-56, 625 S.E.2d at 224; Adams, 354 S.C. at 381, 580 S.E.2d at 795.

There
was other evidence demonstrating Parker’s fear of Martucci which was admitted
without objection. Deputy Wesley Smith interviewed Parker at the law
enforcement center on the day of Child’s death. Smith testified Parker “was
cooperative. He really acted like he was scared of Mr. Martucci and what his
involvement in the case would be and what would happen to him.” Smith vouched
Parker “was always kind of hesitant” about answering questions. He advanced
Parker “cried some” during the interview because he told him that he was afraid
of Martucci. SeeState v. Johnson, 298 S.C. 496, 498, 381 S.E.2d
732, 733 (1989) (stating admission of improper evidence is harmless where it is
merely cumulative to other evidence); Broaddus, 361 S.C. at 542, 605
S.E.2d at 583-84 (holding error in admission of drug evidence was harmless
where it was cumulative to other unobjected-to testimony at trial regarding
drug use and drug dealing); State v. Richardson, 358 S.C. 586, 596-97,
595 S.E.2d 858, 863 (Ct. App. 2004) (holding that even if the challenged
testimony constituted improper “character evidence,” any error in its admission
was harmless where the testimony was cumulative to other similar testimony that
was admitted without objection); see alsoState v. Brown, 344
S.C. 70, 75, 543 S.E.2d 552, 555 (Ct. App. 2001) (holding any error in
admitting evidence of murder defendant’s violent character was harmless as
properly admitted evidence of the defendant’s use of force during his argument
with victim the previous day clearly demonstrated defendant’s propensity to
become violent).

If
the admission of Parker’s testimony was erroneous, it was clearly harmless
beyond a reasonable doubt because its impact was minimal in context of the
entire record.

CONCLUSION

We
hold the trial court properly admitted autopsy photographs which were relevant
to prove Child was abused, that the abuse was the cause of his death, and the
abuse manifested an extreme indifference to human life, all of which support
the charge for which Martucci was under indictment. The evidence of Martucci’s
prior abuse of Child was admissible to show intent, the identity of the abuser,
the absence of mistake or accident, and a common scheme or plan of abuse. We determine
any error in the admission of Parker’s testimony about Martucci’s character is
not preserved. Had the issue been preserved, the testimony would be cumulative
to unobjected-to testimony and concomitantly harmless.